1 The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa. 

## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 04-18 96

___________ United States of Americ a, * * Appellee, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. Wesley Eric Ca rd, * * Appellant

. *

___________ Submi tted: October 18, 20 04 Filed: De cemb er 9, 2004

___________ Before M ORRIS SHEPP ARD ARNOLD , BOW MAN, a nd RILEY, Circuit Judges.

___________ RILEY, Circuit Judge.
A father’ s obligation t o support his c hild, when able, is fun dame nta l. Supporting

one’s c hild is the e ssence of being a responsible adult. Wesley Eric Card (Card) flunked thi s test and pled gu ilty to two counts of willf ul failure to pay child support, in vi olation of

18 U.S.C. §§ 228(a)(3) and (c)(2). The district court 1 sentencedCard

to 21 months imprisonment. Card appeals, arguing the district court2 The Honorable J ohn A. Jarvey, Chief Magistrate Judge, U nited States District Court for the Northern District of Iowa. -2- erred in deny ing him

a sentenc e reducti on for acceptan ce of re spon sibi lity. We aff irm.
I. BACKGROUND On Jun e 2 4, 1988, C ard’s m arriage to his wif

e, Ly nn, was d

issolved in a Minnesota

state court. The dissolution decree ordered Card to pa

y $348. 48 per m onth in child suppor

t. Card made child suppor

t paym ents for si x months in 1988, but never made another paym ent. As of April

14, 2004, C ard owed

Lynn unpaid child

support totaling$119,533.5 4. On D ecem ber 10, 1 996, an Iow a state c ourt order ed Card to pay chi ld su pp ort to Jan in e Tr os th eim ( Tro st hei m) for support of their daughter, Jessica. This obligation ended on August 16, 2000, when Jes sica turned eighteen ye ars old. As o f April 1 4, 2004, C ard owed Trostheim $18, 622.00 in unp aid chil d support.
Card was indic ted on two c ounts of failure to pa y supp or t for a child who resides in another state, in violat ion of 18 U. S.C. §§ 228(a )(3) and (c)(2 ). On November

5, 2003, Card appeared before a United States magis trate j udge 2 to plead guilt y; however, the magistrate j udge adjourned the hearing after concluding Card had not said any

thing to sugge st he accepte d responsibi lity f or his offenses or

that he was pleading guilty. On Novem ber 6, 2003, Card again appear ed before the magis trate judge to pl ead guilty . The gov ernm ent inform ed the cour

t of the evidence itwould pre sent if Ca

rd chose to go to t

rial, in c luding infor

matio n Card had

the ability and equipm ent to wor

k, but “ avoided obtaining any a ssistance or evalua tion in order to a ssist him

in obtaining . . . employ

ment.” W hen the court asked how much of the government’s account was true, Card replied, “A ll of it,” and thereafter Card pled guilty. The district court accepted Card’ s guilty plea.3 The distr ict court o bserved: One o f the fac tors that th e Court m ust consider

under 3E1

. 1 i s voluntaryter mi natio n or withdrawal from cr iminal conduct, voluntary paym ent of restitution. The situation with this Defen da nt is there is absolutely

no medical evidence that I have com e across thatsays t hat he cannot wor

k. He was offe red an opportunity to go through a vocational assessm ent. He ref

used to do tha

t. He’ s not paid an

ything t oward his child support whi le this cas e has been pending

. He hasn’ t applied f or disability compensation, w

hich he coul d use to apply to his obligations to his children. And

I th ink his conduc t of just d isregard ing his responsi bilities to these ch ildren th at he helpe d create con tinues.

. . . . There’s not a shred

of evidence in the record that he has m ade any attem ptto make

any pa ym ents on this s upport obliga tion, that he’ s gone out and looked f

or a job o r that he ha s any restrictio ns on his abilities to work or that anything that he relates as being wro ng with him keeps him from working.

. . . . I believe th at his–hi s c onduct whil e this case has been pending out weighs mer ely c oming in and giving a plea of gui lty. I don’t t

hink that he has cha

nged his beha

vior at a ll. I believe

he is not ent

itled to acceptance of respons ibility because he has not terminated his criminal conduct, which–his c on duct is the s ame as what br ought him

to this Court, and that is willfully not pay ing his child support, so I’m not going to give him acceptance.

-3- The United St ates Prob ation Off ice prepa red a pre sentence inv es tigation report (PSR), which recommended den ial of a two

- level reduction to Card’s offense level for accepta nce of re sponsibility . Card o bjecte d to the rec ommendation, and the governm ent

rec omme nded the accepta nce-of- responsibil ity reduc tion. At sentencing , the district c ourt denied the acce

ptance-of -res ponsib ility reducti on, U.S.S.G. § 3E1.1(a

), findin g Card had

willfull y fai led to pay

child suppor

t, and had

not terminated

this crim inal conduc t or

otherwise changed his conduct at all. 3 The court-4-

sentencedCard to tw o, concur rent 21-m onth prison terms. Card appe als, ar guing he is entitled to the reduc tion, bec ause the e vidence w as insuffi cient to sho w his postindictment n on-payment of chil d suppo rt was willful

. II. DISCUSSION “Whether a defenda nt qualifie s for a ro le reduction is a question of fact,” which “is reviewed under

a clearly erroneous standard.” United States v. Speller , 356 F.3 d 904, 906-07 (8th C ir. 2004) (citatio ns omit ted). “A district court’s f actual determ ination onwhether a defendant has demon strated a cceptanc e of respo nsibility is entitled to great def

erence a nd should be reversed o nly if it is so clea rly erroneou s as to be without foundation.” United States v. Nguyen , 339 F.3d 688, 690 (8th Cir. 2003); see also U.S.S.G. § 3E1.1, cmt. n.5 (2003).
Card has the burden to demonstrat e he should rece ive the re duction for acceptance of

responsi bility. Nguyen , 339 F.3d at 690. The United States Sentencing Guidelines provide fo r a reduc tion in a defenda nt’s off ense leve l if he “ clearly dem onstrates acceptance o f respons ibility for h is offense .” U.S.S.G. § 3E1.1 (a)

. Howeve r, a guil ty

plea does n ot entitle a

defendant

to the adj ustme nt as a

matt er of right. Id. cmt. n.3. The pivotal i ssue is whethe r the def endant show s “a r

ecognition and affirm ative responsibility

for the of fense and sincere remorse.” United States v. Nguyen , 52 F.3d 192, 194 (8th Cir . 1995) (c itation om itted). The purpo se of the reduction is to distinguish “a

sincerel y rem orseful de fendant f

ro m a de fendant not manif esting penitence.” UnitedStates v. Knight , 905 F.2d 189, 192 (8th Cir. 1990).
We find no clear

error w ith the district c ourt’s d enial of a two-leve l reductio n for acceptance of responsibility. While a guilty plea combi ne d with a tr uthful admis s ion of the cond

uct com prising the offense c onstitute suf ficient e vidence of acceptance of respons ib ili ty, this evidence may be outwe ighed by conduct inconsisten

t with acceptin g responsibi lity. U.S. S.G. § 3E1.1, cmt. n.3. A t the guilty plea hearing, Card admitted he wa s ab le to wo rk. The district court observed Card-5-

had not at tempt ed to m ake support paym ents, had not looked fo r a job, had not presenteda “sh

red” of e vidence he

could not work, a

nd had not sough

t disability compe nsation fr om which he could have paid child support. The court concluded Card had not ter

minat ed his crim

inal conduc t of willf

ul failure to pay child suppor

t. Further, Card

provided no e vidence he

had change d his behavior a fter being indicted. BecauseCard did no t mee t his b urden to show he w as entitle d to a reduc tion for acceptance of r e sponsibility , the distr ict court’ s findings w ere not “ so clearl y erroneous as to be witho ut foundation.” See Nguyen , 339 F.3 d at 690. I n fact, the district c ourt’s f

indings and j udgmen

t are we ll founded.
III. CONCLUSION Beca use the district court did not clearly err in denying Card a reduct ion fo r accepta nce of re sponsibility , we af firm the distric t court’ s judgm ent.

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